Soo v Yang & Vale Pty Ltd
[2022] VSC 256
•20 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03767
| LIN SENG SOO | Applicant |
| v | |
| YANG & VALE PTY LTD ACN (167 895 169) as trustee for the Chen Yang Family Trust | Respondent |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April 2022 |
DATE OF JUDGMENT: | 20 May 2022 |
CASE MAY BE CITED AS: | Soo v Yang & Vale Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 256 |
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ADMINISTRATIVE LAW – Appeal from orders of VCAT refusing reinstatement of claim to recover legal costs – Whether parties had agreed to resolve costs dispute – Consent order made on basis of agreement – Grounds of appeal – Admission of evidence of compulsory conference – Inadequate reasons – Procedural fairness – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 85, 117, 148 – Leave to appeal on one ground granted – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K Raghavan | Victorian Bar Pro Bono Scheme |
| For the Respondent | Mr L Wirth | Paul Vale Criminal Law |
HER HONOUR:
The applicant, Mr Soo, disputed legal costs incurred by his lawyer, Mr Chen Yang of the respondent whose legal practice is known as Paul Vale Criminal Law. His application to recover those costs was struck out with a right to apply for reinstatement. An application for reinstatement was made and refused (the reinstatement application). He seeks leave to appeal against the orders made by the Victorian Civil and Administrative Tribunal (VCAT) on 1 September 2000 dismissing the reinstatement application. An appeal from an order of VCAT may only be brought on a question of law.[1] An applicant requires leave to appeal. Section 148(2A) of the Act provides that this court may grant leave to appeal only if it is satisfied that the appeal has a real prospect of success.
[1]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 (1) (‘VCAT Act’).
The applicant represented himself at VCAT and drew the proposed grounds of appeal to this court himself. Three questions of law were identified with multiple grounds in respect of each question. As framed by the Amended Notice of Appeal dated 1 February 2021, the three questions of law are that:
(a) the findings made by the Member were not open to him on the evidence;
(b) the Member breached procedural fairness in conducting the proceeding; and
(c) the Tribunal failed to give adequate reasons for the orders dismissing the reinstatement application.
Mr Raghavan, who appeared for the applicant at the hearing, briefed through the Victorian Bar pro bono scheme, was instructed to press only two of the grounds of appeal. The first question of law pressed only ground 4. The written documents prepared by Mr Soo had described this ground in the following way:
Did Member Josephs on 1/9/20 exceed his judicial powers to use private and confidential negotiations leading to the settlement offer during the 9/7/20 compulsory conference before Senior Member Smithers to make his findings and orders in the reinstatement hearing as in ss 85 and 92?
Mr Raghavan reframed the ground as raising two questions:
(a) Whether the Tribunal’s decision was made on the basis of evidence admitted in contravention of s 85 of the VCAT Act?
(b) Whether the Tribunal breached the requirements of procedural fairness by failing to give the applicant an opportunity to make submissions as to the application of s 85 of the VCAT Act?
Mr Wirth, who appeared for the respondent, consented to this amendment.
The second ground of appeal was relevant to the question of the adequacy of the reasons of the Tribunal. The written ground identified the orders of 1 September 2020 as final orders, which concluded the proceeding. It was said that no reasons were given for those orders as required by s 117 of the VCAT Act. Mr Raghavan approached this ground on the basis that the adequacy of reasons given orally was in question.
There had been an order referring to an application for an extension of time within which to commence the appeal, but as the appeal was filed on 28 September 2020, it appears that the documents were filed within time. To the extent that an extension might be necessary it was not opposed, as any extension would in all probability follow the issue to be determined in the leave application; whether the grounds of appeal have a real prospect of success.
The claim before VCAT
The underlying circumstances giving rise to the VCAT application and the conduct of that application were set out in an affidavit of Mr Soo affirmed on 27 September 2020 and the exhibits thereto. That affidavit and a second one exhibiting two further relevant exhibits sworn on 18 October 2020 were relied on by the applicant.
Mr Soo faced six criminal charges to which he pleaded not guilty. Following a County Court trial, on 30 October 2013 he was found guilty of five of those charges. He was sentenced to a term of imprisonment on 21 February 2014.
Mr Soo appealed both his conviction and sentence. He represented himself in both appeals, legal aid funding having been refused. On 25 November 2014, the Court of Appeal dismissed his appeal against sentence.[2] On 1 May 2015, the Court of Appeal refused an extension of time for him to file an application for leave to appeal his conviction.[3]
[2][2014] VSCA 304 (Weinberg, Whelan and Santamaria JJA).
[3][2015] VSCA 84 (R Osborn and Kaye JJA).
Mr Soo spent time preparing a document of 105 pages dated 2 October 2018, entitled High Court Written Case and Grounds (High Court written case). After being released from jail on 30 October 2018, he attended the law office of Paul Vale Criminal Lawyers and consulted with lawyer Mr. Chen Yang (Yang). The written instructions prepared by the applicant were described in an unsigned document entitled ‘Agreement on Legal costs between client (Soo) and Paul Vale Criminal Law (Chen Yang) with the assistance of appeal barrister Paul Smallwood’, and included the completion of:
… an application for special leave to appeal to the High Court in accordance with Mr Soo’s High Court written case, completion of the High Court appeal, instructions to sue Legal Aid for error in funding guidelines resulting in an unfair criminal trial, a civil action against the police and parents of the complainant [a child].
A deposit of $9,000 was paid into trust on 15 March 2019 for the special leave aspect of the work, and a total budget of $24,000 was identified. The applicant said Yang refused to sign the agreement prepared by the applicant and said he would send a costs agreement and trust receipt.
Two months later, Mr Soo wrote to his solicitor concerned that his special leave application had not been commenced.
Mr Smallwood of counsel provided a written advice on the prospects of success of an application for special leave. Counsel recognised the significant work done in preparation of the High Court written case by the applicant, but came to the conclusion that there was no reasonable prospect that the High Court would grant special leave and entertain an appeal against the conviction recorded. A conference was scheduled on 6 June 2019 to discuss the advice. The applicant in his email of 3 June 2020 noted his disappointment that no error of law was identified that might give rise to a ground for seeking special leave.
A Memorandum of Costs was provided to the applicant. It totalled $8,800, of which $5,500 were Counsel’s fees for the advice. The applicant then wrote a letter of complaint to Yang dated 6 June 2019. His understanding was that his lawyers would commence a special leave application in accordance with the High Court written case. He expected that the lawyers would act on the wishes of the client rather than searching for whether an appeal had merit. He ‘instructed’ his lawyer to try and persuade Counsel to support a special leave application, or find another barrister who would do so, or alternatively refund the deposit in full.
The applicant then made a complaint to the Legal Services Commissioner on 7 June 2019 stating that Yang had not followed instructions and had verbally informed the applicant that the deposit could not be refunded because it had been spent. The complaint considered Mr Yang should not have accepted instructions unless he was to follow exact instructions and start the special leave appeal. The Legal Services Commissioner’s response on 13 June 2019 was that the complaint was lacking in merit as no bill of costs had yet been issued.
By letter dated 12 June 2019, a trust receipt and costs agreement were forwarded by Yang. The applicant says that the description of work had changed from ‘criminal appeal’, to a description of ‘appeal advice’.
The applicant had borrowed the funds provided to Paul Vale Criminal Law from family in order to pursue his application to the High Court. He was unable to obtain further funds but wished to advance an application to the High Court. He lodged his application with the High Court as a self-represented person. Special leave was refused on 12 February 2020.
On 1 June 2020, the applicant made a claim in the Legal Practice List at VCAT. The complaint enlivened VCAT’s jurisdiction to determine consumer disputes under s 184 of the Australian Consumer Law.[4] The dispute was described by the application as being in respect of money given to the lawyer ‘to start an appeal based upon 31 grounds in my written case and grounds dated 2/10/18’, a complaint that no written costs agreement had been signed and a claim of a full refund of $9,000. In substance, the grievance was that he did not give instructions to investigate the merit of a special leave application but instructions to commence such an application on the grounds he had identified in the High Court written case document. The applicant said he was not told that the merit of any special leave application would need to be investigated.
[4]Competition and Consumer Act 2010 (Cth), sch 2, s 184.
The VCAT application was listed for a directions hearing to take place on 9 July 2020. The restrictions imposed by the coronavirus pandemic meant the directions hearing was listed to take place as a telephone conference. It was listed before Senior Member Smithers. In the course of the hearing it was converted by the Tribunal from a directions hearing to a compulsory conference. At the conclusion of the hearing the Senior Member made the following orders (the 9th July orders) which were recorded as being by consent:
1. This proceeding is struck out with a right to apply for reinstatement.
2. No order as to costs.
The 9 July orders are prefaced by the words:
The parties having resolved their dispute, the Tribunal orders as follows
Central to the subsequent application for reinstatement is a dispute as to what occurred at the settlement conference and led to the 9th July orders. What is not disputed is that during the telephone call the Senior Member assisted in the wording of a document prepared by Yang and then emailed to the applicant on 9 July 2020 (the settlement document). Yang’s evidence was that an oral agreement was reached during the compulsory conference and the settlement document was intended to reflect and record that agreement. The applicant’s position was that the document represented a settlement offer only for his consideration and that the settlement offer had not been accepted by him. He said that the opening sentence of the settlement document ‘Please indicate acceptance of the terms of settlement’ makes clear that the document was an offer to settle only.
Following the request to indicate acceptance of the terms of settlement, the settlement document recorded:
The parties agree that the Respondent will pay to the Applicant the sum of $2,000 by EFT to CBA account [BSB and account number completed] (in the name of Lin Seng SOO)(or any other account specified by the Applicant) by 4pm on 23 July 2020, by way of final resolution of VCAT proceeding J49/2020.
…
The parties agree and consent to the Tribunal ordering as follows:
1. The proceeding is struck out with a right of reinstatement
2. No order as to costs
…
The settlement document also contained a paragraph of mutual release from all claims whatsoever, in broader terms than the subject-matter of the VCAT claim, and a paragraph going to confidentiality.
The 9 July orders were emailed to the parties by VCAT on 10 July 2020. On 11 July 2020, the applicant emailed VCAT (11 July email). The 11 July email referred to the 9 July orders. It informs VCAT that the applicant ‘does not agree with the settlement agreement and will not sign it’[5] and that he would like to apply for reinstatement in accordance with the orders. Yang was copied in to that email.
[5]Email to the Principal Registrar of VCAT dated 11 July 2020 at 8:25am.
The reinstatement application was opposed on the basis that an agreement had been reached and that in accordance with that agreement Yang had paid to the applicant the sum of $2,000. In correspondence prior to the reinstatement hearing, the applicant sought advice from VCAT about the repayment of the $2000 forwarded by Yang. The applicant was informed by the Customer Services Division that repayment of the $2000 was a matter for the applicant and whether or not he did so was likely to be relevant to the question of whether his case should be reinstated. The applicant then asked if he was being ordered to repay the amount which the applicant described as a ‘donation’ and ‘free money’ which could be the subject of a small claims dispute separate to the reinstatement. The applicant said he would be willing to refund the money if ordered to do so. The email from VCAT suggested he include a statement as to the return of the funds received from the respondent. His application did not do so.
A hearing of the reinstatement application was listed for 1 September 2020, again by telephone conference. The applicant expected this to be heard by Senior Member Smithers but it was in fact heard by a different Tribunal member, Member Josephs. At the conclusion of the reinstatement hearing, Member Josephs recorded the following findings and made the following orders (the reinstatement orders):
FINDINGS
The Tribunal finds that:
1.The parties agreed on 9 July 2020 to settle the costs dispute, the subject of the proceeding.
2.The respondent has complied with his obligations under the settlement agreement.
ORDERS
The Tribunal orders that:
1.The applicant’s application for reinstatement of the proceeding is dismissed.
2. The proceeding is struck out.
3. No order as to costs.
The reinstatement orders, but not the 9 July orders, are the subject of this appeal.
The evidence of what occurred at the compulsory conference
Ground 4 as articulated by Mr Raghavan raises two questions concerning s 85 of the VCAT Act. Did the Tribunal err by determining the application on the basis of wrongly admitted evidence? Even if the evidence could have been admitted under one of the exceptions in s 85, did the Tribunal nevertheless breach its obligation to accord procedural fairness by failing to give the applicant an opportunity to make submissions as to the admission of that evidence?
Section 83 of the VCAT Act provides that compulsory conferences are held in private unless the presiding Tribunal member directs otherwise. Section 85 of the VCAT Act provides:
Evidence inadmissible
Evidence of anything said or done in the course of a compulsory conference is not admissible in any hearing before the Tribunal in the proceeding, except:
(a) where all parties agree to the giving of the evidence; or
(b)evidence of directions given at a compulsory conference or the reasons for those directions; or
(c) evidence of anything said or done that is relevant to –
(i)a proceeding for an offence in relation to the giving of false or misleading information; or
(ii)a proceeding under s 137 (contempt); or
(iii)a proceeding in relation to an order made under section 87(b)(i).
The applicant submits that the reinstatement hearing is plainly a hearing of the Tribunal in the proceeding and none of the three exceptions set out in s 85 were applicable. The respondent contends in its written submissions that the evidence was admitted without objection and the parties, having put in issue whether there had been a concluded settlement agreement, led evidence by agreement about that issue so that the evidence was admitted pursuant to the exception in s 85(1)(a).
When invited by Member Josephs in the reinstatement hearing to explain the basis for his application the applicant did not address the circumstances leading to the 9 July orders, but began addressing the underlying dispute with Yang itself and referred to the 11 July email. He said it was not explained to him before briefing Mr Smallwood what was to happen and he wanted ‘to get justice and to get some funds back’.[6]
[6]Transcript of Proceedings, Lin Seng Soo v Paul Vale Criminal Law (Victorian Civil and Administrative Tribunal, J49/2020, Member Smithers, 1 September 2020) 2.28 (‘T’).
The evidence about what occurred in the compulsory conference was given by Yang. Clearly, Yang agreed to the giving of that evidence. The question is, did the applicant also agree? The Tribunal identified the central issue to be whether or not a settlement agreement occurred on 9 July 2020. The applicant then gave his account of what occurred during the compulsory conference in answer to a question from the Tribunal that invited comment on Yang’s account.
It is true that the transcript of the reinstatement hearing makes no mention of s 85 or any reference to a basis upon which the evidence of what occurred at the compulsory conference might be admitted or should be excluded. The submission that because
s 85 was not specifically drawn to the attention of the parties there can be no agreement by them to the admission of evidence, is unduly narrow.
The application for reinstatement[7] set out the following basis:
Applicant inform VCAT and Yang on 10 & 11/7/20 that he do not agree with terms in the respondent’s settlement offer and refuses to sign it, so there is no formal signed agreement or contract, yet respondent insist to force a settlement offer agreement by on his own freewill makes a voluntarily $2000 donation into applicant bank account on 22/7/20. Respondent can seek a refund through the small claims tribunal and refund matter should not be part of this J49/2020 proceedings, unless VCAT order refund otherwise.[8]
Similarly, the 11 July email squarely identified a disputed settlement agreement. The applicant’s case for reinstatement was that there had been no agreement, only an offer to settle. The reinstatement application also made a number of allegations about the conduct of Yang during the compulsory conference in support of the application for reinstatement. These documents flag an intention to lead evidence at a hearing of what was said and done at the settlement conference in order to dispute the existence of an agreement.
[7]The application for the reinstatement hearing was included at Court Book 167.
[8]Emphasis in original.
The applicant’s conduct demonstrated his intention to rely on matters that occurred before Senior Member Smithers and which led to the 9 July orders. The applicant’s written outline of argument in support of reinstatement referred specifically to things Yang had said during the conduct of the compulsory conference. Indeed, both parties mistakenly believed that the reinstatement application was to be heard by Senior Member Smithers, with his knowledge of what had occurred at the compulsory conference.[9] These matters demonstrate the applicant’s agreement that such evidence be admissible. The respondent could have objected but also accepted or agreed that such evidence could be relied on.
[9]Applicant, ‘Affidavit of Lin Seng Soo’, Affidavit in the matter of Lin Seng Soo v Chen Yang of Paul Vale Criminal Law S ECI 2020 03767, 27 September 2020, [11] setting out the applicant’s belief; see also T 3.11-14.
The nature of the hearing is also relevant. The hearing is not dealing with the underlying merit of the dispute. Where the Tribunal is conducting a hearing as to the merit of a dispute, clearly the starting point is that evidence of what might be said or done in a settlement conference ought not be placed before the Tribunal. However, a reinstatement application is a hearing to decide whether a matter already disposed of by order, ought be returned to the list of cases to be determined on its merit. In such a hearing, it is almost inevitable that the circumstances that lie behind the making of the order striking out the claim will be relevant. Having identified the relevant question, the Tribunal is required to act fairly[10] and with as little formality and technicality as the VCAT Act requires, and a proper consideration of the matters before it permit.[11] In my view, the evidence was admissible in accordance with the exception in s 85(1)(a).
[10]VCAT Act (n 1) s 97.
[11]Ibid s 98.
The second limb of the ground concerning s 85 is a failure to draw it to the attention of the applicant so that he could make submissions on admissibility. The Tribunal is bound by the rules of natural justice.[12] As a self-represented litigant, the applicant was entitled to assistance from the Tribunal both as to substantive legal rights and to the procedure to be followed by the Tribunal.[13] It is often said that the requirements of natural justice are flexible and whether it has been afforded to Mr Soo is a question of whether he has been given a fair hearing in all the circumstances. The question is whether, given the nature of the reinstatement hearing, the Tribunal should have drawn the attention of the parties to s 85 and obtained explicit agreement or an objection to the admission of evidence of what was said and done at the compulsory conference? In my view, whilst perhaps desirable and even necessary in some circumstances, it was not necessary on this occasion and a failure to do so has not amounted in this instance to a procedural unfairness.
[12]Ibid s 98(1)(a).
[13]Tomasevic v Travaglini [2007] VSC 337.
First, there is no affidavit from the applicant stating that he was unaware of the provision and, given the applicant’s extensive reference to other provisions of the VCAT Act, including s 83 in support of his reinstatement application, I would not necessarily infer that he was unaware of s 85.
Second, if he was so unaware, the failure to draw the applicant’s attention to s 85 must result in some unfairness in the way in which the hearing was conducted. The applicant referred me to Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd.[14] In turn, that case quoted from Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors, where it was stated that in some circumstances involving self-represented litigants the Tribunal has an obligation to intervene, for the benefit of the litigant in person and more generally. Such assistance ought enable a self-represented litigant to overcome the disadvantage suffered when faced with a lawyer and ‘to prevent destruction from the traps which our adversary procedure offers to the unwary and the untutored’.[15]
[14][2015] VSC 515.
[15][2008] VCAT 1479, [57] – [58].
It is not submitted that s 85 was in some way used by Yang to unfairly advantage his position such that the intervention of the Tribunal was necessary. Rather it was submitted that s 85 was a relevant legislative provision given the issue to be determined and therefore the Tribunal ought to have drawn it to the applicant’s attention.
Mr Raghavan identified a number of different courses that the applicant might have followed had the Tribunal raised s 85. Acceptance that a hearing might have progressed on a different basis does not of itself mean that the hearing as it in fact proceeded resulted in some unfairness.
The applicant was provided with an opportunity to present his evidence of what had occurred and to express his disagreement with the evidence of Yang. The Applicant was provided with a reasonable opportunity to present his case that a settlement offer only was made at the compulsory conference which he was not obliged to accept or that any verbal acceptance was not binding unless it was written. That is the case he wished to advance and he did so. He suffered no disadvantage by the admission of the evidence such that the Tribunal was required to draw s 85 to his attention..
Ground 4 is not made out.
Reasons
I turn then to the second ground of review. The inadequacy of the Tribunal’s reasons was advanced as the primary ground upon which the applicant relied. The Amended Notice of Appeal on the inadequacy of reasons stated:
Member Josephs on 1/9/20 made his findings and gave his final orders… And thus conclude the proceedings, but did not give any reasons for his orders as required in s 117.
In oral submissions, the Counsel for the respondent raised whether the reinstatement orders were interim orders and therefore not subject to reasons in accordance with
s 117. Interim orders are defined as ‘an order of an interim or interlocutory nature’.[16] The reinstatement application having been refused, the proceeding remains struck out as it was by the 9 July orders and the reinstatement orders did not finally dispose of the rights of the parties.
[16]VCAT Act (n 1) s 3.
Mr Raghavan’s submission was that the orders were not interim orders as they did in effect finally dispose of the rights of the parties.
A subsequent reinstatement application is not foreclosed by the orders, although a subsequent application on the same grounds may fail as an abuse of process. Certainly in the context of an application to set aside a default judgment, an order refusing the application is not a final order.[17] If the reinstatement order is not a final order, then there is no obligation under s 117 to give reasons and an error of law based upon the reasons could not succeed. As was said by Gibbs CJ in Carr, the test ‘requires the Court to have regard to the legal rather than the practical effect of the judgment’.[18]
[17]Carr & Anor v Finance Corp of Australia Ltd (1981) 147 CLR 246 (‘Carr’); [1981] HCA 20.
[18]Carr (n 17) [248]. See also R v McGowan; Ex parte Macko & Sanderson (1984) VR 1000 (Kaye J) on whether of a Magistrates’ Court order striking out criminal charges a is a final order, and Guss v Johnstone, unreported Beach J 94/4038, 23 March 1994 in relation to an order striking out a civil proceeding in the Magistrates Court.
The matter, having being raised after the conclusion of the applicant’s oral submissions, was not fully argued and the submissions proceeded on the basis that reasons are required and their adequacy to be considered. In deference to the submissions made, I will consider the adequacy of the Reasons provided as if s 117 applies. If required, in my view, the reasons provided contain an explanation for the conclusion sufficient to disclose no error of law and permit the applicant to know why he lost. My reasons for this conclusion follow. It is not necessary to embark on a consideration of whether the reasons were required under s 117. I note that the practical effect of the orders sought on this appeal would permit a further reinstatement application
The submission proceeded on the basis that although there are no written reasons requested the Tribunal gave oral reasons which are contained in the transcript.
The applicant relied on the principle as enunciated in ACN 087 528 774 v Chetcuti.[19] In particular, he relied on the passage at paragraph 20:
Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection. As appears below, the trial judge’s reasons in this case did not meet the standard expected and an error of law has thus been disclosed. In particular, the trial judge did not give separate consideration to a substantial argument which was raised for determination, being one of the alternative ways in which Mr Chetcuti put his case.
[19](2008) 21 VR 559.
The applicant submits that Chetcuti was a case regarding the reasons of a County Court judge following a claim for damages for tortious injury but that the standard required for adequate reasons, as described there, has been applied in the context of s 117 reasons under the VCAT Act.[20]
[20]Citing its quotation and application by Zammit J (now Incerti J) in Victorian Legal Services Commissioner v Harle [2015] VSC 697.
The respondent submits that, in approaching the reasons of the Tribunal in accordance with s 117 of the VCAT Act, I should adopt the reasoning of Kyrou J in Victoria v Turner.[21] His Honour said:
On the basis of the above decisions and the terms of s 117 of the VCAT Act itself, the position in relation to s 117 is that where the tribunal fails to give reasons or gives reasons which omit a finding on a material question of fact or otherwise fail to disclose its path of reasoning for reaching its decision, it commits a vitiating error of law.
There are conflicting first instance decisions in this court as to the circumstances, if any, in which the provision of inadequate or deficient reasons by the tribunal constitutes an error of law. For myself, in relation to reasons of the tribunal, which are subject to s 117 of the VCAT Act, I would prefer not to use expressions such as “inadequate reasons” or “insufficient reasons” as the test for determining whether an error of law exists. I would prefer to state the test in the terms set out in [240] of this judgment.[22]
[21](2009) 23 VR 100, 173 (‘Turner’).
[22]Ibid [240] – [241].
Reasons are required for all orders other than interim orders.[23] Where oral reasons are provided, written reasons may be requested by a party within 14 days of the oral reasons.[24] Where written reasons are provided, those reasons must contain findings on material questions of fact.[25] Section 117 of the VCAT Act does not refer to the content of oral reasons. Reasons generally will be adequate if they permit an understanding of the conclusions of fact and law that form the basis for the orders made. It is sometimes said that adequate reasons allows the parties, and in particular the losing party, to understand why they lost, and for an appeal court to ascertain whether an error of law has occurred in reaching the decision.
[23]VCAT Act (n 1) s 117 (1).
[24]Ibid s 117 (2).
[25]Ibid s 117(5).
The adequacy of reasons must depend on the issues and the nature of the proceeding in any given case. In an appropriate case, a combination of reasons expressly stated and inferences that necessarily arise from what is expressly stated.[26] As Mahoney JA said of the obligation on a judge in Soulemezis v Dudley (Holdings) Pty Ltd:
Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation, being a judicial decision, a sufficient explanation will be given of why the order was made.
…
The weight which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.[27]
[26]Woolworths Ltd v Warfe [2013] VSCA 22, [131] (Kaye AJA).
[27](1987) 10 NSWLR 247.
Mandie J said of the content of oral reasons given by VCAT that they must be considered with ‘the latitude that the nature and size of the dispute allows and taking into account the absence of legal representation’.[28] Reasons should however, even if not obliged to deal expressly with each specific factual issues, at least make general findings. In this case, findings directed to the Tribunal’s satisfaction of whether or not there had been an agreement and why it was so satisfied.
[28]SMA Projects Australia v Jovanovic [2006] VSC 176, [39] (Mandie J).
The two key findings of fact are set out in the document recording the orders made. The oral reasons that accompany must be ones ‘which disclose a path of reasoning for reaching its decision’.[29]
[29]Turner (n 21) [240].
The parties agreed that there were two reasons that led to the finding that the parties agreed to be bound at the compulsory conference. The first was that there was a conflict in the evidence and the Tribunal preferred the evidence of Yang. The second reason was that Yang had paid the money due pursuant to that agreement and the money had not been repaid.
The applicant submitted that the reasons did not disclose an intelligible way in which the evidentiary conflict was resolved. It was submitted that the question of subsequent payment of the money by the respondent was irrelevant to the question of whether an agreement had been reached at the compulsory conference. Thirdly, it was submitted that the reasons did not deal with a substantial issue raised by the applicant which was that any agreement obtained at the compulsory conference was obtained by the exertion of unfair pressure.
The respondent submitted that, although perfunctory, the reasons made clear why the Tribunal reached the conclusion it did. The respondent relied on the passage in 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd where it was said by the Court:
Among other reasons, it is essential that losing parties know why they have lost. However, that does not mean that it is necessary for the Tribunal to set out matters which are so obvious as to go without saying when the reasoning is considered as a whole. [30]
[30][2015] VSCA 126, [52] (Hansen, Ferguson, McLeish JJA).
The evidence before the Tribunal from Yang was that both parties indicated an acceptance of settlement and, in order to have a record of that settlement, the Tribunal would not prepare terms of settlement but would ‘dictate’ the terms of the agreement which Yang typed and sent to the applicant.[31]
[31]T 17.25.
The applicant agreed that each party was spoken to privately. The Member asked whether the parties could come back together (on the conference call) and Senior Member Smithers then congratulated the parties on reaching an agreement. The applicant said:
He didn’t use the word congratulations. He said he’s happy that… There was an agreement between the parties, but the thing is that I think straight away, almost the next day, I did object to - - to the settlement, and I sent an email to VCAT and to Mr Yang and said the reason why I didn’t want to sign it, but Mr Yang, after my objections, not - - when I told him that I wouldn’t sign it, he still made the payment a day before the two weeks period was up.
So the thing is that the next day after the so called settlement I gave an indication that I was not happy with the condition and the background behind it‘.
The applicant was asked was there a time when he agreed to a figure of $2,000 to which he replied ‘it was nothing – it was all verbal. There was nothing written down’.[32] He said that ‘it was verbal only to be formalised in the written offer’.[33] He described what was dictated by the Senior Member as a ‘settlement offer’. When he was again asked whether at any stage he agreed to settle the matter if he was paid a sum of $2,000, he replied that he agreed to the $2,000 based on what Mr Yang said,[34] but that he didn’t know when it was to be paid, albeit that he ‘overheard’ that it was to be two weeks. He said he was not told that reinstatement was dependent upon the settlement amount not being paid within 14 days. He then gave evidence that he understood that Mr Yang was required to make an offer in writing.
[32]T 13.10.
[33]T 37.28.
[34]T 15.31.
Yang was questioned by the Tribunal on the basis that he had not obtained agreement to everything in the settlement document and, beyond the first paragraph dealing with the payment of $2,000, the document referred to other conditions; including an agreement not to publish or broadcast the contents of the agreement, and mutual discharge of obligations arising from the retainer, which was broader than the subject matter of the dispute before VCAT. Yang accepted that the settlement document went beyond the terms of what was orally agreed but maintained there had been an oral agreement to finalise the claim on the payment of $2000.
One difficulty with the settlement document is the opening words inviting the applicant to indicate his acceptance of the terms of settlement. Despite the applicant characterising it as a settlement offer, the document does not describe itself as an offer. It references a settlement on the basis of which the parties had already consented to orders having being made by the Tribunal. The applicant’s argument to the Tribunal was premised on an erroneous foundation that any oral agreement reached was not binding until such time as it is reduced to a signed document. His evidence made clear that he later changed his mind about accepting the settlement verbally reached during the compulsory conference.
In that context, the Tribunal’s oral reasons commence on page 39 of the transcript and say on the question of an agreement:
- the law was really looking in terms of where it was contemplated that a formal contract be written up. It really wasn’t - - it was never contemplated that there would be a contract. It was contemplated that it might be formalised or would be formalised in writing. Perhaps if you, with due respect Mr Yang, somewhat clumsily so if I might observe, because of your heading of the email. But having said that, what I’ve got to do is decide on the evidence before me that there was an agreement reached where the parties agree to be bound immediately, and having heard the evidence of both parties on the important points, I do find that I prefer the Respondent’s evidence to the Applicant, and I can’t avoid the fact that the money has not been repaid. So, I have formed the view that the parties did intend to be bound immediately by the terms of an agreement which was reached, and which has been effected by virtue of payment of the money and acceptance of the money, and therefore I have to dismiss the application for reinstatement.
Although at that time the Member did not explain why he preferred the evidence of Yang, the reasons do convey that the Member approached the question on the basis of whether or not there had been an oral agreement. A further clarification can be found in the preceding discussion with the parties. In particular, the Tribunal explained to Mr Soo that an intention to be bound did not have to be in writing.
Member: You see, whatever be the case, the law is that a settlement agreement is still made if the parties intend to be bound immediately, though there might be a desire expressed to draw up their agreement in a more formal document at a later stage. Mr Soo you used the term ‘formalised’ and I wrote that down. You said that that’s what Senior Member Smithers had said.
Mr Soo: He wouldn’t have said that to me if it wasn’t meant to be formalised in the (inaudible).
Member: No, no, no, but you are missing my point. What has been said is – and its good law that has been applied for 66 years – that the person intends to be bound immediately though expressing a desire to draw up their agreement in a more formal document at a later stage. It was – there was no – there was no request for you to sign it, it was a request to – poorly worded- indicate acceptance.
The applicant gave various answers on this question, some of which disputed an oral agreement but at other times conceded there was a verbal agreement which he appeared to believe was not binding until it was formalised. In the context of the questions and explanations given through the hearing, the form of the 9 July orders and the matters recorded in those orders, the reasons of the Member for preferring the evidence of Yang on this question may be plainly understood.
Secondly, the issue of whether the money paid pursuant to the agreement was returned was not in my view irrelevant to the question before the Tribunal. First, it was relevant because the applicant agreed that he had given his particular bank details during the compulsory conference. This was capable of informing the question of whether there had been an oral agreement at the time to accept the sum offered.
The applicant took issue with the issue of return of the money saying ‘I wasn’t told to return it back and Mr Yang certainly doesn’t want the money back’. The Member said:
But that’s not determinative – I mean it’s a factor I take into account….On the evidence I find that the parties intended to be bound immediately, so that’s why – and so therefore the fact that the terms of settlement have been given effect to, it’s just, - irrespective of whether it’s been repaid really. I’m simply noting that, but having said that, I have already formed a view that there was a settlement.
The applicant said he was unaware of any 14-day time limit for payment. However, the critical fact is not when the money was paid. The Tribunal did inform the applicant that it was a matter for him whether to repay the $2000 to Yang but that whether or not he does so is likely to be relevant to the question of whether the application should be reinstated. It was suggested that legal advice on the question be obtained.[35] Despite that information, the applicant elected not to repay the money prior to the reinstatement hearing. He said this was because he did not have details of how to return it. The Tribunal unsurprisingly took the view that the respondent had fulfilled his part of the agreement and the applicant retained the funds paid in fulfilment of that obligation.
[35]Emails from the Customer Services Officer of VCAT dated 29 July 2020 and 4 August 2020, Court Book 344.
The applicant’s alternative argument, that he did agree, but he was under unfair pressure to do so, was not supported by any evidence before the Tribunal. It was raised by the applicant in his letter the day after the compulsory conference in which he said he felt under pressure to accept a lesser sum.
The applicant’s written argument in support of reinstatement which was dated 23 August 2020 described feeling pressured because of a mental illness (which he described as anxiety, depression, dementia and PTSD) and poor health (arthritis, hypertension and type 2 diabetes). There is no suggestion that such an assertion was raised before Senior Member Smithers. It was first raised in correspondence to Yang on 10 July 2020.[36] During the reinstatement application the applicant only raised the issue in response to a final question from the Tribunal as to whether he had anything further he wished to say. He said he was unhappy with the situation, it seemed ‘so unfair’ and that feeling under pressure he ‘can’t remember everything that was said…or discussed’. There was no suggestion by medical evidence or otherwise that his capacity to make a decision was impaired or that he sought additional time from Senior Member Smithers to consider the matter. Given the lack of evidence or any submission squarely put to Member Joseph on this issue, it is unsurprising that the reasons did not avert to it.
[36]T 24.16.
The reasons, though brief, properly conveyed to the parties that the Tribunal was satisfied that the parties had consented to the 9 July orders on the basis of an agreement that Yang would pay to the applicant the sum of $2,000. The Tribunal did not accept that the settlement document was an offer by Yang. The reasons also conveyed to the parties a finding that the settlement document prepared by Yang was not agreed to and not signed. Therefore, the only agreement was an oral agreement. The 9 July orders permitted an application for reinstatement, not a right to reinstatement and the applicant failed to persuade the Tribunal that the agreement upon which the 9 July orders were made should be revisited.
In the circumstances, I would give leave to appeal on the basis of ground 4 as reframed by the applicant’s counsel only but dismiss the appeal.
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